STATE EX REL. LYNCH v. CONTA, 662668674680686692698704
663669675681687693699705
71 Wis.2d 662 (1976) 664670676682688694700706
665671677683689695701707
239 N.W.2d 313 666672678684690696702708
667673679685691697703709
_________________________________________________________________
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State ex rel. LYNCH,
District Attorney of Dane County,
Petitioner,
v.
CONTA, and others,
Respondents: DORMAN and others,
Necessary Parties, but not denominated Respondents.
_________________________________________________________________
Supreme Court No. 75-459. Argued 1/7/76. Decided 3/2/76.
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ORIGINAL ACTION for declaratory judgment. Rights declared.
This is an original action for declaratory judgment, seeking a
declaration that certain meetings conducted by the respondents
violated the open meeting law, section 66.77, Stats.
The petition for leave to commence an original action was filed
on October 3, 1975. On November 21, 1975, this court accepted
jurisdiction and ordered that the petition stand for a complaint.
The respondents requested that their original reply to
the petition be accepted as a responsive pleading.
A stipulation of facts was filed on November 17, 1975.
The joint committee on finance of the Wisconsin legislature,
created by section 13.09, Stats., consists of fourteen members.
Seven of them, all Democratic party members and representatives
in the assembly, are the named respondents in this action.
Four committee members, state senators and also Democrats, have
been denominated necessary parties to this proceeding.
The committee is completed by one senator and two
representatives, all of whom are members of the Republican party,
the minority party in both the legislative houses and their
standing committees.
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It is agreed that the principal responsibility of the committee
was to recommend to the legislature a budget bill, governing the
appropriations of funds to state departments and outlining the
revenue sources for such funds.
At all times material to this action the committee was concerned
with the 1975 budget, contained in Assembly Bill 222, introduced
on January 23, 1975.
During the consideration of this bill, nineteen public hearings
were held for the purpose of receiving public testimony on
funding and allocation.
Members of state agencies, interested groups and the general
public all informed the committee of their views.
On fourteen occasions, the committee met in executive session to
consider the proposed budget and possible amendments.
Notices of these sessions were furnished to all committee
members, to agencies whose budgets were to be considered, to the
legislative audit bureau, to the department of administration and
to the legislative fiscal bureau.
This latter agency, authorized by Section 13.05, Stats., is
specifically designated to provide expertise in financial
planning and thus assist the committee.
Members of the press corps were also informed and notice was
given to the general public by postings on the
legislature's bulletin boards.
Discussion of the budget proposals ensued at these meetings and
decisions were made a matter of public record via roll call vote.
On May 6, 1975, a report of the committee
was submitted to the assembly.
By an eight-six vote, the committee recommended passage
of an amended version of the original bill.
Voting in favor were the seven respondents and
one Republican representative.
The recommended version was changed in both legislative houses.
The assembly accepted six amendments.
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The Senate undertook another version of the original
bill, which in turn underwent a major amendment.
When the assembly refused to accept this proposal, a joint
committee of conference endeavored to write a compromise bill.
This form, ultimately passed by both houses, had twenty-one
additional significant changes from the version
recommended by the committee.
Numerous individual items in this final form were vetoed
by the governor, only a few of which were returned
by the requisite vote of each house.
State ex rel. Sundby v. Adamany, ante, p. 118, 237 N.W.2d 910.
While the bill was still before the committee, the respondents
and the four Democratic senators held a private
meeting on March 11, 1975.
No notice was given to the minority party committee members, nor
was any compliance had with the notice requirements of the open
meeting law, section 66.77(1)(e), Stats. That statute requires
that meetings of governmental bodies be held in a place
reasonably accessible to members of the public
and which is open to all citizens.
Public notice is also required of the time, place and subject
matter of the meeting, either pursuant to applicable statutory
requirements or through general notices to the public and to
either officially designated newspapers or members of the news
media.
This meeting was held in a state office building and members
of the legislative fiscal bureau were in attendance.
They reported on the finances of certain large state agencies,
identifying key areas in the budget allocations of each.
It is the recollection of some committee members in attendance
that the meeting involved only questioning of
the reporting bureau members.
Other legislators recall that information was exchanged as to the
partisan attitude of members of each house and as to the
processes within the two house Democratic caucuses.
No record was kept of the activities.
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The occurrence of gatherings of this type was apparently
known to other members of the legislature.
In response to the request by a Senate member not on the
committee, the attorney general issued an informal opinion
on the application of the open meeting law to
such situations on March 29, 1975.
The attorney general believed that the statute did apply, but he
temporarily declined enforcement of its forfeiture provisions
until the legislature had the opportunity to affirm or disavow
such meetings as being within either the "partisan caucus" or
"legislative rules" exceptions, section 66.77(4)(g) and (h),
Stats.
Another private meeting was held on April 24, 1975.
Only the seven respondents were notified.
The stipulated facts recite that the four Democratic party
senators were not notified and did not attend, and they represent
to this court that they did not attend in reliance on the opinion
of the attorney general.
The minority party members also were not notified and did not
attend.
Members of the legislative finance bureau and one employee of the
department of administration were present at the meeting.
They briefed the respondents on particular items of the budget
bill and alternatives to such allocations.
The parties to this action agree by stipulation:
17. That these selected budgetary items were then discussed and
reviewed by the members in attendance in order to arrive at
an alternative acceptable to most of the members present.
That the discussion and review involved factors which were
essential for the members present to determine the party
policy and party strategy relevant to the items
under discussion.
18. That at this conference it was the purpose and intent of the
members present to articulate their attitudes and the
attitudes which they believed were those of other majority
members not present or of the party itself so that the other
members in attendance would know where each of the members
at that time stood and what their thinking was on any
particular matter at that point in time.
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The purpose and design of the conference was to attempt
to reach an alternative that would be acceptable
to the majority as a whole."
The petitioner has alleged that the department of justice was
made aware of this meeting, but that it did not bring
an action under section 66.77(9), Stats.
Another section of the open meeting law, section 66.77(10),
allows a district attorney to institute an action to impose the
monetary forfeiture for violation of the law, section 66.77(8),
upon the verified complaint of any person.
Petitioner district attorney of Dane county received such a
complaint from a member of the legislature on August 25, 1975.
Rather than commence that forfeiture action, the petitioner
requests this court to render a declaratory judgment on the
question of whether the open meeting law was violated
by the seven respondents.
No judgment is requested, according to his pleadings, concerning
the four Democratic party senators on the committee because they
voluntarily ceased their participation in such meetings.
Petitioner has denominated them as necessary parties but not
respondents in this proceeding.
The judgment requested, then, concerns only the named respondents
and their participation in the two private meetings.
Petitioner requests the following declaration of rights:
1. That the respondents must conform their conduct to the
provisions of section 66.77, Stats.
2. That the respondents were in violation of said statute
on March 11, 1975 and April 24, 1975.
For the petitioner there was a brief and oral argument by
Humphrey J. Lynch, district attorney of Dane county.
For the respondents there was a brief by Richard L. Cates,
John C. Carlson and Lawton & Cates of Madison, and
oral argument by Richard L. Cates.
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A brief amicus curiae was filed by H. Joseph Hildebrand
and Flanagan, Steinhilber, Chaney & Hildebrand of Oshkosh,
for Gary R. Goyke.
A brief amicus curiae was filed by Bronson C. La Follette,
attorney general, and John J. Glinski, assistant attorney
general, for the attorney general.
HANLEY, J.
The following issues are presented for determination by this
court:
1. Is this a proper case for declaratory judgment?
2. Should a rule of strict construction be followed
in interpreting section 66.77, Stats.?
3. Were the private gatherings of the respondents and
interested parties "meetings" of a "governmental body" as
described in the statute?
4. Were these meetings excepted from open session requirements?
5. In rendering a declaratory judgment, would this court
violate the doctrine of separation of powers?
Declaratory judgment.
This court has already decided the question of original
jurisdiction.
Unquestionably the guidelines acknowledged in Petition of Heil
(1939), 230 Wis. 428, 442, 443, 284 N.W. 42, embrace this case,
with its unique issues of interest to this state
and its citizens.
Such action, however, was strictly confined to the question of
which court should entertain this action, or phrased differently,
should the supreme court exercise its original jurisdiction?
Remaining to be determined by the court of jurisdiction is the
question of the propriety of rendering a declaratory judgment.
The granting or denying of relief in a declaratory judgment
action is a matter within the sound discretion of the court.
Selective Ins. Co. v. Michigan Mut. Liability Ins. Co. (1967),
36 Wis.2d 402, 408, 153 N.W.2d 523; section 269.56(6), Stats.
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This discretionary power is most frequently invoked by the
challenge of the adversary of the party seeking judgment,
see: Rudolph v. Indian Hills Estates, Inc. (1975),
68 Wis.2d 768, 771, 772, 229 N.W.2d 671,
who poses the question of whether the
device is appropriately used.
Miller v. Currie (1932), 208 Wis. 199, 203, 242 N.W. 570.
The unusual roles of the parties here, coupled with statements
from the petitioner that indicate an indifference to the very
right he supposedly seeks to vindicate, make it quite proper
for this court to review this action for compliance with
announced standards for a declaratory judgment, even
if no challenge is issued by the respondents.
A declaratory judgment may be issued only if the action
measures up to the following requirements:
(1) There must exist a justiciable controversy Ä that is to say,
a controversy in which a claim of right is asserted against
one who has an interest in contesting it.
(2) The controversy must be between persons whose
interests are adverse.
(3) The party seeking declaratory relief must have a legal
interest in the controversy; that is to say,
a legally protectible interest.
(4) The issue involved in the controversy must be ripe for
judicial determination.
Borchard, Declaratory Judgments, pp. 26-57.'"
State ex rel. La Follette v. Dammann (1936),
220 Wis. 17, 22, 264 N.W. 627, quoted in
Pension Management, Inc. v. Du Rose (1973),
58 Wis.2d 122, 127, 128, 205 N.W.2d 553.
See: State v. WERC (1974), 65 Wis.2d 624, 633, 223 N.W.2d 543.
In his complaint, petitioner states:
(26) That the petitioner brings this action to obtain an
authoritative ruling from this court on whether the
meetings violate the open meeting law."
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The enforcement provisions of the open meeting law
are as follows:
(8) Any member of a governmental body who knowingly attends a
meeting of such body at which a violation of this section
occurs shall forfeit without reimbursement not more than
$200 for each such violation, provided that he shall not
be liable if he calls for a vote on whether the body
shall take that action constituting such violation,
or if he is recorded in the minutes of the body as
voting against the action constituting such violation.
(9) The department of justice may bring an action
under this section on its own motion.
In such cases, the court shall award the recovery of the
forfeiture together with reasonable costs to the state.
(10) The district attorney may commence an action under the
section upon the verified complaint of any person.
In such cases, the court shall award the recovery
of reasonable costs to the county.
If no action is commenced within 20 days after verification such
person may bring an action in his own name and, if the defendant
is found guilty of violating this section, the court may award
costs and reasonable attorney's fees to the plaintiff."
Section 66.77, Stats.
In this proceeding, the requested declaratory judgment concerns
the applicability of the statute to a situation described in
facts stipulated by the parties.
This question is markedly different from the question of whether
there was a knowing violation of the statute by the named
respondents, which would be the focus of a prosecution action.
The requested judgment is, however, arising in the penal context,
as the petitioner district attorney of Dane county has an
interest only under such circumstances.
A review of the above-quoted forfeiture provision demonstrates
that this is an act that has penal consequences.
3 Sutherland, Statutory Construction,
section 59.02 (3d ed. 1974).
We note that the originally enacted version of the open meeting
law contained no enforcement provision. Ch. 289, Laws of 1959.
As such it was merely a suggested mode of responsible
governmental procedure.
By Chapter 297, Laws of 1973, the legislature modified
the law and added the forfeiture provision.
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The petitioner here seeks a construction of the law apparently
for enforcement purposes and thus consideration cannot be given
to such additional aspects as the "voidability" provision.
section 66.77(3), Stats.
There has been doubt in the past as to whether the declaratory
judgment procedure was proper when penal legislation was
involved.
The general rule now is that rights, status or immunities under
penal laws may be the subject of declaratory judgments in a
proper case.
This was acknowledged in Waukesha Memorial Hospital v. Baird
(1970), 45 Wis.2d 629, 635, 173 N.W.2d 700.
It is also generally accepted that a proper case for declaratory
judgment is presented only by the request of the party
threatened by the application of the penal law.
Borchard, Challenging "Penal" Statutes by Declaratory Action,
52 Yale L.J. 445 (1943).
However, since the parties are in fact adversaries, and if the
defendants could have brought this suit as the petitioners and
have not protested the converse form, there is no inflexible
requirement to dismiss the suit.
We do admonish against further suits in this style.
Those in the position of the petitioner have a ready and adequate
forum for their proposed construction of a law in the normal
enforcement action.
Declaratory judgment is reserved for those without
such available recourse.
Prior cases indicate that this court has been willing to
entertain such suits in the past.
In re Petition of State ex rel. Attorney General (1936),
220 Wis. 25, 264 N.W. 633, this court accepted original
jurisdiction for a declaratory judgment sought by the
attorney general on the constitutional validity of
the Wisconsin Recovery Act, which he was to enforce.
An actual controversy was found between him and the tavern
industry subject to the act, and judgment upholding
the constitutionality was found.
Likewise, in Department of Agriculture & Markets v. Laux (1936),
223 Wis. 287, 293, 270 N.W. 548, the court approved what it
deemed a "declaratory judgment determining whether the
questioned sections are constitutional," again
brought by the statute's enforcement officers.
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These cases are precedent for the conclusion that this court,
or any trial court, while not encouraging those charged with
law enforcement to petition for declaratory judgments,
will accept such cases in the exercise of discretion.
Such exercise would be guided by the normal
principles of declaratory judgment.
In most situations, the action should be refused until the
order of parties is reversed so that the party
subject to the penal law is plaintiff.
Additionally, Wisconsin has adopted the Uniform Declaratory
Judgment Act, which by its language labels itself remedial
and explicitly calls for a liberal construction.
Section 269.56(12), Stats.
As such, it allows broad construction of "any person . . .
whose rights, status or other legal relations are
affected by a statute. . . ." section 269.56(2).
Implicit recognition of this limited outlet to prosecutors is
demonstrated in section 269.55, Stats., and comparable laws of
other states which allow a declaratory judgment on whether an
item is obscene.
Notice is given to all parties of their potential rights before
resort is had to the criminal prosecution.
See: State v. I, A Woman Ä Part II (1971),
53 Wis.2d 102, 191 N.W.2d 897;
Gerstein v. "Pleasure Was My Business"
(Fla. App. 1961), 136 So.2d 8.
In the present status of this action, the parties
involved are certainly adverse.
Just as clear is the respondents' interest in contesting this
proceeding insofar as it seeks to label their past
actions as a violation of the statute.
Closer questions are presented as to whether the petitioner has
a legally protectible interest in the controversy, whether
the controversy is justiciable in that this right is
being asserted against the respondents and whether
the controversy is ripe for judicial determination.
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Petitioner district attorney has a right of enforcement
when he has received a citizen complaint, receipt of
which is alleged in his complaint.
Is this right of enforcement, coupled with the overall duty
of a district attorney under section 59.47(1), Stats., such
a right that enables him to seek declaratory judgment
relief under our declaratory judgment act?
City of Nevada v. Welty (1947), 356 Mo. 734, 203 S.W.2d 459 at
460 and State ex rel. Hopkins v. Grove (1921), 109 Kan. 619, 201
Pac. 82 at 84, both acknowledge this right for declaratory
judgment purposes.
Is the controversy justiciable, in that the petitioner is
asserting his enforcement right against the respondents? Some
doubt has arisen on this point following the petitioner's
acknowledgment that he would not seek a conviction upon a
declaratory judgment finding a violation of the law.
The respondents urge that the controversy is still alive, in
that the citizen complainant may start an enforcement suit if the
district attorney declines to prosecute.
Section 66.77(10), Stats.
Furthermore, the language of the statute does not indicate that
the Department of Justice is barred from suit merely because
they declined action in the past. Section 66.77(9).
Both those parties have submitted amicus curiae briefs
rging that a violation be found.
It must again be stressed that the question before the court is
whether the terms of the act were violated; the question of
prosecution is not part of the requested judgment, as it
involves the scienter element, a "knowing" violation.
The respondents' strong reliance on an exception to the law, one
that is arguably imprecise, certainly impairs any claim that this
was a known violation of clear provisions of law.
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Doubt will continue until a construction of the statute
resolves its meaning.
Objections that the criminal prosecution is the only
forum for that purpose are in error.
Potential defendants may seek a construction of a statute or a
test of its constitutional validity without subjecting themselves
to forfeitures or prosecution.
Borden Co. v. McDowell (1959), 8 Wis.2d 246, 99 N.W.2d 146;
Wisconsin Fertilizer Asso. v. Karns (1968), 39 Wis.2d 95,
158 N.W.2d 294;
Soglin v. Kauffman (D.C. Wis. 1968), 295 Fed. Supp. 978,
affirmed (7th Cir.) 418 F.2d 163.
Respondents certainly wish to know whether they can be
prosecuted for similar gatherings in the future.
The strongest rationale against dismissal of this action remains
their interest in having the propriety of their proceedings
clarified, irrespective of how this particular district
attorney feels about prosecution for the last two in question.
Justiciability is present.
Finally, is the controversy ripe for judicial determination?
State ex rel. La Follette, supra, provides an example of this
criterion.
There the state governor sought a declaratory judgment on his
power to fill vacancies on boards and commissions, caused by
deaths and resignations, until the legislature reconvened.
He sought the judgment because he had been advised by the
secretary of state that the latter would neither honor the
appointments nor pay the salaries of such appointees.
In refusing to decide the action on this contingent fact,
the court required the governor to actually make such
appointments to see if the threat would be carried out.
This case presented an example of the key question
summarized in the above "ripeness" requirement:
"When are the facts sufficiently developed to admit of a
conclusive adjudication, and when are they so contingent
and uncertain as to justify a refusal to decide?".
Borchard, Declaratory Judgments, supra, at 56.
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Factual uncertainty was the barrier to an adjudication
in the Waukesha Memorial Case.
The "ripeness" requirement does not demand that one "act on his
own view of his rights and perhaps irretrievably shatter the
status quo," Id. at 58, yet if another act can be taken
to remove contingencies and doubt, it should be
taken to make the action proper.
Factual circumstances determine whether this factor is satisfied.
By their factual stipulation, the parties have presented a case
that is not uncertain.
Acts have been taken, and the only contingency is prosecution,
which waits upon the requested judgment or perhaps upon
future repetition of the decried meetings.
The "ripeness" criterion is fulfilled.
Miller v. Currie, supra, offered a further elaboration on this
timeliness aspect of a request for a declaratory judgment.
Admonitions that all interested parties be determined and be
present, that a determination of solely future rights be avoided,
and that decisions not be made on merely contingent interests,
all are satisfied here.
The stipulated facts also insure that a decision here will
terminate the controversy as to the application of
the law to those circumstances.
This finality requirement exists under section 269.56(5),
Stats. Standard of construction.
Because a declaratory judgment action may involve a reversal
of the roles of the usual plaintiff and defendant, care must
be taken in determining where the burdens of proof and
persuasion lie.
Note, 1941 Wis. L. Rev. 513.
Additional care must be exercised in discerning the real nature
of the action and the standard of construction to be
employed in interpreting the statute.
The most persuasive rationale for allowing a declaratory judgment
is the interests of the respondents in having a fair warning
as to their penal liability.
Likewise, the interest of the petitioner lies only in the
enforcement of the law, in which aspect he must also accept the
strict construction that is given to laws being penally applied.
State ex rel. Gaynon v. Krueger (1966), 31 Wis.2d 609,
143 N.W.2d 437.
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If the respondents here were involved in a direct forfeiture
action, they would be entitled to have a strict construction.
The same rule would be appropriate if they commenced
the declaratory judgment action.
See: Frank v. Kluchesky (1941), 237 Wis. 510, 297 N.W. 399.
Strict construction of forfeiture laws has been followed
even if enforcement is not involved.
Capt. Soma Boat Line, Inc. v. Wisconsin Dells (1973),
56 Wis.2d 838, 845, 203 N.W.2d 369.
In State ex rel. Dept. of Agriculture v. Land O'Lakes Ice Cream
Co. (1945), 247 Wis. 26, 18 N.W.2d 325, a police power statute
regulated the size of containers to be used for the sale
of milk and cream.
A $500 penalty was to be recovered by the attorney general for
violations by manufacturers, as in the present case, while
dealers who used nonconforming containers were declared
to be guilty of using false measures, which act carried
a fine or imprisonment under another statute.
The court recognized that the statute as applied to the
defendants was, after all, a criminal statute and must be
strictly construed such that the failure expressly to permit an
act could not be construed as a prohibition. Id. at 29.
Thus the actual nature of the underlying proceedings dictated
this standard even though the enforcement officer was the one
who raised the issue as petitioner in a declaratory judgment.
Reference is made to the liberal attitude of the Florida courts
in interpreting that state's open meeting law.
Fla. Stats. section 286.011 (1973).
In Board of Public Instruction of Broward County v. Doran
(Fla. 1969), 224 So.2d 693, it was held that the law was enacted
for the public benefit and should be interpreted most favorably
to the public despite its penal nature.
In reaching this result, the Florida court reasoned that the
presence of penalties for certain specific violations of the
Workmen's Compensation Act did not require that the whole
of that act be strictly construed.
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For an exactly similar analogy, see: Laman v. McCord (1968),
245 Ark. 401, 432 S.W.2d 753.
When an act requires many different performances, only some
of which are coupled with sanctions for noncompliance, it is
obvious that a strict construction is not to be extended
to those provisions not carrying a penalty.
The analogies applied by Florida and Arkansas are not persuasive
when the forfeiture provision, as here, applies to any violation
of the entire law and the proceeding involving interpretation
are concerned with the punitive aspect.
The act places the duty to prosecute any violation on the
Wisconsin Department of Justice and the district attorney.
We acknowledge that authority can be found which seems to
repudiate a strict construction.
Sutherland reviews both the older and more modern justification
for strict interpretation rule for punitive legislation,
including forfeiture laws. Id. at section 59.02.
He also observes that
"Where public or social interests in penal legislation is
especially great the policy of giving penal laws a very
strict construction may be relaxed." Id. at section 59.05.
The authority produced by Sutherland for the above quoted
proposition, Caminetti v. U.S. (1917), 242 U.S. 470, 37 Sup.Ct.
192, 61 L.Ed. 442, did not pronounce such theory verbatim.
The case is in fact not inconsistent with strict construction.
In construing a statute we attempt to find the common sense
meaning and purpose of the words employed, and therefore review
the intent of the legislature.
State v. Vlahos (1971), 50 Wis.2d 609, 616, 617,
184 N.W.2d 817;
See: State ex rel. Gutbrod v. Wolke (1971), 49 Wis.2d 736, 749,
183 N.W.2d 161.
Sutherland's quoted proposition above is a more narrow example of
this broader rule, recognized by Sutherland in section 59.06,
that the purposes of the legislature are appropriately to be
considered in a review of punitive legislation.
Heidersdorf v. State (1958), 5 Wis.2d 120, 123, 92 N.W.2d 217.
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The legislature did provide some indication of its intent in the
enactment of this statute, and it is to be given great weight.
State ex rel. Harvey v. Morgan (1966), 30 Wis.2d 1, 10,
139 N.W.2d 585.
66.77 Open meetings of governmental bodies.
66.77(1) In recognition of the fact that a representative
government of the American type is dependent upon
an informed electorate, it is declared to be the
policy of this state that the public is entitled
to the fullest and most complete information
regarding the affairs of government as is
compatible with the conduct of governmental
affairs and the transaction of governmental
business.
The intent of this section is that the term "meeting"
or "session" as used in this section shall not apply
to any social or chance gathering or conference not
designed to avoid this section.
Although the initial wording indicates that a broad application
is intended, a qualification appears by the language that the
adherence will be only such "as is compatible with the
conduct of governmental affairs and the transaction
of governmental business."
Apparently if open session requirements prevent the fair process
of democratic government, the specific requirements are relaxed.
Specific exceptions to the law, typically necessary and
justifiable occasions for privacy, have been listed
in section 66.77(4), Stats., and they both qualify for the
intended exception and also illustrate its meaning.
Mere government inconvenience is obviously no bar to the
requirements of the law.
Our statute does contain the scienter requirement of "knowing."
This declaratory judgment, as requested, is A review of the
statute convinces a reader that its meaning is not so plain that
a "knowing" allegation can be sustained on every violation
that may be developed in its interpretation.
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The lack of uniformity among petitioner and the two amici
curiae as to how a violation occurred under the law
reiterate that the language is not clear.
But in arguing that a liberal rather than strict interpretation
should be followed when ambiguities appear, especially when the
question of a violation is raised in a penal context, the
petitioner would transform this action into an advisory opinion
unrelated to its factual contents, contrary to the rules of
declaratory judgment. State v. WERC, supra.
Not only would the liberal construction be in disregard of the
actual controversy, it would also cause the court to enlarge the
reach of enacted crimes or alter the incriminating components as
prescribed and proscribed by the legislature.
See: Morissette v. United States (1952), 342 U.S. 246, 263, 72
Sup.Ct. 240, 96 L.Ed. 288.
This prohibited practice amounts to legislation by the court.
Frank, supra, at 517, 518.
Attempts to address broader issues through a liberal
construction, when a strict scrutiny is given ambiguous statutes
in a normal prosecution, would provide a more tangible basis for
future prosecutions than is afforded by the law itself.
The petitioner, in perhaps seeking a construction such that due
process "fair notice" problems are minimized, see: Frank, supra,
cannot avoid this maxim of interpretation.
We conclude that a liberal construction is contrary to the
procedure of a declaratory judgment and poses
constitutional problems as well.
Due deference should be given to the balance of interests
reflected in the statute's stated purpose with resort to
a strict interpretation when ambiguity arises from
the wording of the statute.
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Open meeting law.
The broadest provision of the open meeting law is contained in
section 66.77(3), Stats.
66.77(3) Except as provided in subsection 66.77(4), all
meetings of governmental bodies shall be open sessions.
No discussion of any matter shall be held and no action
of any kind, formal or informal, shall be introduced,
deliberated upon, or adopted by a governmental
body in closed session, except as provided
in subsection 66.77(4).
Any action taken at a meeting held in violation
of this section shall be voidable.
It states the duty imposed on members of government, in both
positive and negative admonitions of the rule.
Except under certain specified circumstances, all governmental
bodies must conduct their meetings in open sessions; if the
meeting of the governmental body occurs under circumstances that
do not meet the standards of an open session, then that body is
forbidden both from having any discussion and from introducing,
deliberating upon or adopting any formal or informal action.
Actions taken contrary to this admonition are declared voidable.
Although this aspect is unclear, perhaps meaning that tangible
actions can be thus voided while intangible thought processes
from discussion cannot be reached by such a labelling as "void,"
the construction of that item is not necessary to this action.
The meaning of "governmental body" is crucial for this
proceeding, just as it is the key term to this statutory plan.
Besides being used to define "meeting," the term is used with and
without "meeting" in the broad statements of coverage and
exclusion in section 66.77(3) and (4), Stats., and in the other
regulatory admonitions of section 66.77(5), (6), (7) and (8).
In the definition section of the legislation,
it is provided that:
66.77(2)(c) "Governmental body" means a state or local agency,
board, commission, committee, council or department
created by constitution, statute, ordinance, rule
or order; a municipal or quasi-municipal
corporation; or a formally constituted
subunit of any of the foregoing."
Section 66.77(2), Stats.
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The open meeting law thus defers the determination of the
existence or composition of a particular governmental
body to the enactment which creates the body.
Stated another way, the question of whether a particular group of
members of the government actually compose a governmental body is
answered affirmatively only if there is a "constitution, statute,
ordinance, rule, or order" conferring collective power and
defining when it exists.
The creating enactment or the created body in turn
might define "formally constituted subunits."
As stipulated in this case, the governmental body whose
members allegedly were involved in violating the law
was the joint committee on finance.
That committee consists of fourteen members of the
legislature, drawn from both houses.
The committee obviously can be categorized as a "committee .
. . created by . . . statute." section 66.72(2)(c), Stats.
The members of the committee are also members of the legislature,
in sessions of which they exercise that power which is
conferred upon that body as a whole.
Whether the members of the committee are in fact acting as the
committee in any given time depends upon the rules governing it
that are applicable from the source which created it.
Although the actual statute that provides continual authority
for the committee does not detail its mode of operation,
it is presumably governed by the same structure
followed by the legislature.
The houses of that body, as well as their committees, lack all
power and authority, and thus lack existence as a body, until a
quorum, defined as a majority of members, is assembled.
Wisconsin Constitution, art. IV, section 7; 1975 Assembly Rules
15, 22 (1); 59 Am. Jur. 2d, Parliamentary Law, p. 320,
section 4 and p. 322, section 6 (1971).
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The process of composing a body competent to act officially
commences upon a required notice to all members that the
organic body is to meet. 59 Am. Jur. 2d, supra.
Its existence, and therefore its legal meeting, start with
a roll call to determine the presence of a quorum.
Jefferson's Manual of Parliamentary Practice, art. VI.
Reiterating the above proposal as the proper method for
interpreting "governmental body" is the definition
of "meeting" which incorporates the other term:
66.77(2)(b) "Meeting" means the convening of a governmental
body in a session such that the body is vested
with authority, power, duties or responsibilities
not vested in the individual members."
Section 66.77(2), Stats.
The rather formal language employed Ä the "convening . . . in a
session," and not just any session, but rather a "session such
that the body is vested with authority, power, duties or
responsibilities not vested in the individual members" Ä
compels a conclusion that those sessions where the
members compose a legally competent governmental
body are "meetings" under the statute.
At the point of bringing the governmental body to its
collective existence, the members are faced with
compliance with the open session requirement.
If those responsible for calling the meeting have done their
duty, a proper site and advance public notice would be procured.
Should a deficiency be noted, the body is forbidden to
proceed, even informally, with its business.
There may, of course, exist grounds as specified in section
66.77(4), Stats. for which a closed session would be had, but
section 66.77(5) apparently compels that the decision for a
closed session and the nature of the business to be privately
discussed must be announced in an open session.
This could either occur at an earlier open session which
announces that the body will convene in a future closed session,
or else could occur at a meeting already commenced under the open
session requirements, subject to the restraint against
reconvening in open session again within a twelve hour period.
It is obvious that a governmental body cannot convene in a
session that does not satisfy the "open" requirements and then
try to remedy the deficiency by announcing in such inadequate
circumstances that a closed session will then be undertaken.
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The petitioner and the amici curiae all would object to
any interpretation of the above language that restricts
its meaning purely to the formal sense that is intended
by the plain language.
Urging liberal construction and an alleged intent of the
legislature that a different meaning is involved, these
parties seek some method to reach those members of a
governmental body who would fail to follow the
formalities of convening a competent body.
The arguments proposed to reach such end involve a
torturous reading of the law's provision.
A common tactic is circuitous reasoning, i.e., when any member of
a governmental body meets with another member they are thus
meeting and are thus a governmental body.
The goal sought to be attained by such parties may be
reached without doing violence to the plain wording.
The problem is adequately addressed in the preamble to the law:
The intent of this section is that the term "meeting" or
"session" as used in this section shall not apply to any
social or chance gathering or conference not designed to
avoid this section." (Emphasis supplied.)
Reading this language with the preceding statements that the
public is entitled to the fullest information "as is compatible
with the conduct of governmental affairs and the transaction of
governmental business," the drafters acknowledged that members
of government organizations frequently interact and socialize
with their fellow workers.
Comment, 45 Miss. L. J. 1151, 1167-1170 (1974).
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Conversations on actual or potential government
business are bound to occur.
To declare that such discussions must proceed only after public
notice and in a publicly accessible place would be not only
impossible of enforcement but ludicrous if attempted.
A serious question of deprivation of privacy
would also be potential.
An exception from the defined gatherings to which the law must
apply was therefore enacted for social or chance gatherings.
Since it is stipulated that such were not involved here, no
attention may be directed to whether the language Ä "was designed
to avoid this section" Ä modifies those situations.
It is clear, however, that such language does pertain to
"conferences."
If members of a governmental body intentionally gather to
discuss business without undertaking a formal meeting,
they can be described as in a conference.
It may occur that the entire membership of a body gather
and "confer" before proceeding to hold their meeting.
The same may happen to a majority and thus a quorum
of the membership.
Finally any group less than a quorum, down to
only two members, may confer.
The statute does not let such possible gatherings
exist as an evasion of the law.
A conference may be analyzed to see if it is designed
to avoid an open meeting requirement.
If such intention is discerned, it may thereupon be designated a
"meeting" under the statute for analysis of its exact
noncompliance with open session requirements.
Obviously whenever such intent is admitted, little problem is
presented to the enforcement officer.
More often, however, circumstances will be presented where sound
discretion will be required of the prosecutor and courts; this
will be especially required when the conference is charged as the
crucial point in decision-making, with the formal meeting being a
mere "rerun." Wickham, Let the Sun Shine In!
Open Meeting Legislation Can Be Our Key to Closed Doors in State
and Local Government,
68 N.W. U. L. Rev. 480, 490-495 (1973).
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The revision of our open meeting law when forfeiture was added as
a sanction also included the addition of conferences "designed to
evade the law." The establishment that such occurred, for
prosecution purposes, is obviously a question of fact.
Circumstances themselves, however, may dictate that evasion is
being designed.
If every member of a governmental body is present at a conference
and any of the broad activity that composes governmental activity
as defined in section 66.77(3), Stats., is undertaken, a question
of evasion is posed; the members are exposing themselves to the
jeopardy of a prosecution.
A chance gathering would not justify governmental activity being
intentionally conducted, unless an emergency or other
difficulties (other than that engendered by open session
compliance) made such action necessary.
A planned conference of the whole offers no such exigent excuse.
Likewise, when a majority and thus a quorum gather, it is a rare
occasion which can justify any action without open session
compliance and therefore not be considered an evasion of the law.
Quorum gatherings should be presumed to be in violation of the
law, due to a quorum's ability to thereafter call, compose and
control by vote a formal meeting of a governmental body.
As to the March 11, 1975 gathering, petitioner and both amici
curiae agreed that a majority, a quorum of the committee,
participated in a private conference.
Their purpose was to receive expert advisory opinions, which
action would fall into the informal government activity described
in section 66.77(3), Stats.
When the members of a governmental body gather in sufficient
numbers to compose a quorum, and then intentionally expose
themselves to the decision-making process on business of their
parent body Ä by the receipt of evidence, advisory testimony, and
the views of each other Ä an evasion of the law is evidenced.
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Some occurrence at the session may forge an open
or silent agreement.
When the whole competent body convenes, this persuasive matter
may or may not be presented in its entirety to the public.
Yet that persuasive occurrence may compel an automatic decision
through the votes of the conference participants.
The likelihood that the public and those members of the
governmental body excluded from the private conference
may never be exposed to the actual controlling rational
of a government decision thus defines such private quorum
conferences as normally an evasion of the law.
The possibility that a decision could be influenced
dictates that compliance with the law be met.
Only seven of the fourteen members of the committee
were present at the April 24, 1975 meeting.
This is less than a quorum.
Amicus curiae attorney general would find no violation here.
Petitioner and citizen complainant Gary R. Goyke urge that
this private conference was in violation of the law.
The arguments of Goyke on the circumstances presented in
the April 24th meeting are clear and persuasive.
Because the committee has an even number of members, all action
can be effectively stymied if seven members, one-half of the
whole body, vote and act in concert, a unit vote that may
occur because the seven have engaged in private, group
investigation of the matters before their parent body.
It is a short step from the initial and predictable ability to
frustrate all action to thereafter control it, through the
shift of one member of the unorganized other half.
In committees with an even number of members, this "negative
quorum" has the automatic potential of control that, like
quorums elsewhere, dictates that it publicly engage
in the public's business.
In the authority cited to bolster his argument
on the "negative quorum," Goyke refers to
the decisional law of Florida.
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By drawing a precise line of distinction as to why the
open session requirements should apply under the
circumstances, he was able to avoid the dubious
results that have occurred under that law.
In Bigelow v. Howze (Fla. App. 1974), 291 So.2d 645, 647,
it was held that the decision-making processes of a duly
appointed subcommittee of a public body, if composed
of more than one member, must be held in public,
even though such subcommittee members constitute
less than a quorum of the public body who
must act on their recommendation.
It is clear that the same court would have applied the law
to any informal group of members of a governmental body,
less than a quorum, who discuss pending business.
Supporting authority was a concurring opinion in another case
which decried attempts to hide a conference decision of a quorum
by breaking into separate but communicating subgroups.
The end result of Bigelow was the finding that two members of
the group, assigned to investigate an out-of-state project,
had violated the open meeting law by discussing their
impressions during the return journey.
The sham used to conceal the existence of a privately-meeting
quorum does not require that the open meeting requirements be
applied to all private conferences involving less than a quorum.
It is certainly possible that the appearance of a quorum could be
avoided by separate meetings of two or more groups, each less
than quorum size, who agree through mutual representatives
to act and vote uniformly, or by a decision by a group of
less than quorum size which has the tacit agreement and
acquiescence of other members sufficient to reach a quorum.
Such elaborate arrangements, if factually discovered, are an
available target for the prosecutor under the simple quorum rule.
An absolute rule requiring an open session, simply when only two
members of a body confer, clearly is not within the statute.
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Such a rule would prohibit conferences even if the number
of members were less than the appropriate quorum or "negative
quorum" test (according to the parent body's composition)
and were not otherwise evasions of the law,
such as concealed quorums.
Proponents of such coverage would argue that minority groups
are capable of fashioning government action in secret,
although to a lesser degree than quorum groups.
When the membership of a governmental body is small,
only a few members can control it; when the body is
large and the conference group is also large but
just short of a quorum or "negative quorum,"
effective control is also possible.
This is so because absences, abstentions and the
random votes of unaffiliated members may propel
their private decisions into acceptance.
Without precise guidelines, this proposed construction apparently
extends to any conference between two governmental body members.
Even a liberal interpretation of the statute
hardly supports this conclusion.
Initially, the meetings of a minority lack the efficacy
that commands that quorum or "negative quorum"
conferences be held in open session.
In a quorum decision in private, the conference participants
have the later power to call and establish a competent
official body, and then immediately vote their
predecided position into existence.
This is known beforehand and can be automatic, subject
to the possible change of heart of a participant.
When the group in conference is a minority, their opportunity
to take such ultimate action depends on chance factors.
There is no guarantee of success.
Both the innocent and the schemer have the same chance
that unpredictable factors will put them in
a position to dictate a result.
This limitation separates them from conferences which can dictate
a binding result, a strength that allows the presumption that an
evasion of the laws occurs in a quorum or "negative quorum"
private gathering.
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Lack of this strength compels the conclusion that minority
group gatherings are no evasion, even if there is a
possibility of their attaining a chosen goal.
Besides lacking that efficacy that determines whether a
conference is a "meeting," minority group gatherings appear
to be beyond the coverage intended by the legislature.
To impose open session requirements on all government business
discussions between at least two members of the same body,
merely on the basis that such discussion somewhat enhances
the possibility that mutual interests will be furthered and
possibly carried out in the form of some future official action,
would virtually impede much of the preliminary labor involved
in any government action and thus be incompatible with the
necessary "conduct of governmental affairs and the
transaction of governmental business."
A law embracing such private discussions would raise many
constitutional objections.
Given a choice of possible interpretations, this court
must select the construction that results in
constitutionality rather than invalidity.
In re Petition of Madison Metropolitan Sewerage Dist. v.
Department of Natural Resources (1974), 63 Wis.2d 175, 185,
216 N.W.2d 533,
Just as we will choose a reasonable construction rather than one
that leads to unreasonable or absurd results,
Browne v. State (1964), 24 Wis.2d 491, 131 N.W.2d 169.
The strict rule of construction would also dictate that the law
be so applied, if it could be contended that the legislative
intent is indeterminative, because the proposed construction
reaching two-member meetings is an outgrowth
of statutory ambiguity at best.
This imprecision initially opens the law to the charge that
it is too vague to be enforced consonant with due process.
Jones v. State (1972), 55 Wis.2d 742, 745, 746, 200 N.W.2d 587.
Additionally, and even if the law could be viewed to
clearly cover two-member discussions,
problems of overbreadth would occur.
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This constitutional doctrine decries government penal intrusion
into areas protected by the individual's First Amendment
freedoms, such as of speech and of association. State v. Mahaney
(1972), 55 Wis.2d 443, 447, 448, 198 N.W.2d 373.
Equally abhorred is the sweep of the law that comes so close as
to have a discouraging or "chilling" effect on the exercise
of these rights. Jones, supra, at 747.
This problem was apparently recognized and resulted in the
exclusion of chance and social gatherings from the
reach of the statute.
A construction of the law that covers minority gatherings
down to two members would resurrect such a problem.
The argument in petitioner's brief does not explicitly
acknowledge a "negative quorum test," so some attention should be
directed as to whether he has proposed a viable alternative basis
for finding a violation.
By the stress laid on certain facts, it appears that he is
arguing that some particular circumstances involved
in these meetings are perhaps such a basis.
Initially, most of his argument, as indicated by the topic
headings in his brief, concerns the eleven-member
meeting of March 11, 1975.
The fact that the members involved were all of the same political
party, one that has a majority control in the legislature,
is cited.
This has no particular significance when the more important
factor of "quorum" or "negative quorum" in numbers is involved.
Perhaps the implication is raised that the seven member meeting
of April 24, 1975 should be afforded special coverage because
those members could exercise partisan influence on their
nonattending colleagues.
That argument is totally refuted by the facts.
The Senate members refused to attend the meeting
in the apparent belief that it was improper.
In the official action of the whole committee, none joined with
the seven respondents in approving a budget proposal; a majority
was obtained only with the vote of a member of the opposition
political party.
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Mention is also made of the presence of legislative
finance bureau members at these conferences.
Although the argument is directed mainly to the "partisan caucus"
exception, discussed infra, there may perhaps be the implication
that the use of the talents of these government employees
transformed the conference into a governmental body meeting.
Government activity in general, as it is so broadly defined in
section 66.77(3), Stats., to include even discussion of
government business, is a necessary element in any gathering that
qualifies for the open session requirement, but the occurrence of
such an activity as discussion does not by circuitous reasoning
somehow transform an otherwise unqualified gathering into a
"meeting" of a "governmental body."
Neither would the presence of bureau members.
The statutory authorization directing its activity allows the
bureau to advise members of the legislature, not just its parent
body and committees. section 13.95(1)(e).
Presence of these members is indicative of the conduct of
governmental business, which in turn is relevant in determining
whether a conference in evasion of the law is occurring, but this
presence does not transform an informal conference into the
strictly-defined official governmental body meeting.
Statutory exceptions.
The conferences under scrutiny here must be tested for open
session compliance unless otherwise excepted from that
requirement.
A governmental body is allowed to convene in closed session for
purposes of:
"Partisan caucuses of members of the state legislature"; section
66.77(4)(g), Stats.
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Respondents claim reliance on this exception.
It is stipulated that committee members who were also members of
the Democratic party were the only governmental body members
involved in the conferences.
Another stipulation acknowledges that the committee chairman
assigned specific areas of the budget to the party members for
their study and recommendation to their partisan comrades.
Petitioner initially objects to the depiction of these
conferences as mere partisan caucuses.
One curious argument is that they cannot be such if government
business is being discussed.
The statutory exception does not so qualify its application.
Partisan caucuses have little purpose other than to choose party
leadership and thereafter discuss governmental business for the
purpose of attaining a unified party position on the subject.
To hold that legislative members can have partisan caucuses but
cannot discuss governmental matters would render the statutory
language superfluous, which is to be avoided.
Associated Hospital Service, Inc. v. City of Milwaukee (1961), 13
Wis.2d 447, 109 N.W.2d 271.
Objection is also raised that the conference cannot be called a
partisan caucus because of the presence of the bureau members.
The status of the governmental body members, not that of the
resource people called in to assist them, is determinative of
whether the caucus is partisan.
Members of the various legislative bureaus, at any rate, are to
be strictly nonpartisan, apparently for just such a purpose.
Secs. 12.92, 13.93 and 13.94, Stats.
The key argument against the application of the exception under
these circumstances is the assertion that it was intended only
for the traditional, institutionalized partisan caucuses of the
whole of the houses.
This contention was announced by the attorney general in his
informal opinion concerning these meetings.
In the context of that writing, it appears to be a conclusion
that follows his earlier assumption that the reach of the law is
to be liberally construed and its exceptions strictly interpreted
against those seeking avoidance.
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As indicated before, imprecision in the law is to be interpreted
in favor of claimants threatened with forfeitures.
Obviously the exception does apply to such
whole house partisan caucuses.
No persuasive argument is forwarded as to why it does not also
apply to partisan caucuses of the committees.
Even apart from its source in liberal interpretation, the
attorney general's conclusion would be supportable if the
exception were simply for "partisan caucuses of the state
legislature" rather than "partisan caucuses of members of the
state legislature." section 66.74(4)(g), Stats.
It is no secret that the legislature has resorted to the
committee system to administratively cope with
the press of business before it.
In his informal opinion, the attorney general acknowledged
the "custom" of partisan caucuses on the
particular committee involved here.
Counsel for the respondents confirmed that legislative
committee members do have partisan conferences.
There is no basis to conclude that such caucuses are prohibited
by language that plainly includes them.
We note that within a "formal, institutionalized" caucus of the
whole house, committee members could be instructed to confer and
discuss pending business in their committees for a progress
report and recommendation to the whole body, thus achieving the
same result sought to be avoided by the unsupported and
restrictive interpretation offered against the respondents here.
It should also be noted that "partisan caucuses" are inherently
conferences and not "meetings of a governmental body."
Thus the prior notice requirement of a closed session of
a governmental body meeting is also not applicable.
It may appear that committee partisan caucuses unduly inhibit
the open meeting law and are unnecessary
for the "conduct of governmental affairs and the transaction
of governmental business." section 66.77(1), Stats.
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However, that contention is equally applicable to
partisan caucuses of the whole.
Yet it was the legislature, not this court, which determined
to provide exceptions to the law and drafted them to its own
purposes.
Not every state that has an open meeting law includes its state
legislature within the coverage.
The legislature may redraw or abandon the "caucus" exception if
this construction is not in accord with its intent, and would be
the proper forum for citizen dissatisfaction with a partisan
caucus exception.
Since the voters of this state apparently give some weight to
party labels, there may in fact be a silent but overwhelming
majority who believe that their party should be able to
privately caucus in the legislature and its committees.
Issue of separation of powers.
The respondents contend that the constitutional guidelines
of separation of powers precludes this court from
entering a declaratory judgment.
Various cases are analyzed and abstract principles
are thereupon distilled by the respondents.
It is argued that the legislature has broad powers,
which it may use at its discretion, which may
include "arbitrary and improper" judgment.
In re Falvey (1858), 7 Wis. 528, 538 or questionable
motives, State ex rel. Reuss v. Giessel (1952), 260 Wis. 524,
51 N.W.2d 547.
Further, it is noted that the legislature can act
contrary to its own rules of procedure.
McDonald v. State (1891), 80 Wis. 407, 412, 50 N.W.
185, and, it is claimed, ". . . contrary to statutes which
purport to regulate procedure, more particularly, the antisecrecy
statute." Outagamie County v. Smith (1968), 38 Wis.2d 24, 155
N.W.2d 639; Respondent's Brief, p. 15.
Finally, courts will intervene only if the legislative procedure
or end result constitutes
a deprivation of a constitutional right. See: State ex rel.
Elfers v. Olson (1965), 26 Wis.2d 422, 426, 132 N.W.2d 526.
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This last pronouncement must be corrected by the qualification,
obvious in the context of the cases and specific in Elfers,
supra, that the court will not overturn the decisions
of the legislature.
As previously stated, a requested declaratory judgment cannot
address hypothetical questions, especially that of the validity
of the actions of the committee after a violation of the open
meeting law occurred in its proceedings.
The question posed here is whether certain facts compose a
violation of a law enacted by the legislature.
The possibility that some legislators may tend to be inhibited in
their future proceedings, due to the chance of a forfeiture
action, does not equate with legislative decisions being
questioned by the judicial branch of government.
This application of the law is only to individuals.
A more persuasive rationale for this same result, one which may
incidentally offer guidance on the jurisdiction of the
courts in reviewing legislative decisions, does exist.
Respondents correctly assert that mere violations of
parliamentary rules of procedure are no
grounds for voiding legislation.
McDonald, supra.; 59 Am. Jur. 2d, Parliamentary Law, secs.
1-2. The obvious rationale is that they may be suspended by the
body and have no binding force on subsequent terms of the body.
Id. Respondents undoubtedly have no quarrel with the opposite
time-honored precept, established in Marbury v. Madison (1803),
1 Cranch 137, 2 L.Ed. 60 that the judiciary may review the acts
of the legislature for any conflict with the constitution.
Elfers repeated this duty.
An area of uncertainty may exist as to the jurisdiction of a
court to review the activity of a legislature for a
violation of a statute duly enacted by it.
Respondent questions such power on the basis
of the Outagamie County Case.
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This issue has application to both the jurisdiction of a court to
challenge the validity of the ultimate decisional act that is
produced through such activity, as well as the jurisdiction to
impose any statutory sanctions that would be applicable.
Implicit in this later question is the apparent belief of the
respondents that a legislature could not delegate such forfeiture
authority, even if the statute plainly applies to them, as here.
The doctrine of separation of powers presumably prevents what
would otherwise constitute an intentional waiver.
A violation of a statute in the enactment process of regulations,
by bodies of lesser status than the highest legislature of a
jurisdiction, renders such regulations void even if passed in
conformance to the lesser body's internal rules of procedure.
Anderson v. Grossenbacher (Tex. Civ. App. 1964), 381 S.W.2d 72;
Heiskell v. Baltimore (1886), 65 Md. 125., 4 Atl. 116.
These decisions indicate that statutory law is to equate with
the organic constitutional law, but since they are made in the
context of bodies subordinate to the source of the statute,
they are of limited application to the particular
question involved here.
Of more importance is Ex parte McCarthy (1866), 29 Cal. 395.
The California legislature had ordered a newspaper publisher
to give testimony before the body on his knowledge
of bribery among its members.
Upon his refusal, he was jailed for contempt, a power
vested in that legislature by its constitution.
McCarthy petitioned the court for his release on grounds
that included denial of counsel by the legislature.
The court there cited In re Falvey, supra, in refusing to act,
a case which is relied on by the respondents for their
contention that the judiciary may not review the
discretionary judgments of the legislature.
However, both Falvey and McCarthy reiterate that the court
may review the action to see whether the body had exceeded
its jurisdiction. McCarthy, supra, at 403.
Falvey, supra, at 553;
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he California court went further:
"Had the Senate the power or jurisdiction
to investigate the charges of bribery
in question for any purpose?
"We shall first consider this question by
the light of the common parliamentary law,
independent of any restrictions placed
thereon by the Constitution or any laws
made in pursuance thereof.
"A legislative assembly, when established,
becomes vested with all the powers and
privileges which are necessary and
incidental to a free and unobstructed
exercise of its appropriate functions.
These powers and privileges are derived
not from the Constitution; on the contrary,
they arise from the very creation of a
legislative body, and are founded upon the
principle of self preservation.
The Constitution is not a grant, but a
restriction upon the power of the
legislature, and hence an express
enumeration of legislative powers and
privileges in the Constitution cannot be
considered as the exclusion of others not
named unless accompanied by negative terms.
A legislative assembly has, therefore, all
the powers and privileges which are necessary
to enable it to exercise in all respects, in
a free, intelligent and impartial manner, its
appropriate functions, except so far as it may
be restrained by the express provisions of the
Constitution, or by some express law made unto
itself, regulating and limiting the same."
(Emphasis added; citation omitted.) Id.
In expressing the legislature's power, there is a perception
by the court that statutes are more equatable with the
constitution
than with mere internal rules and must be adhered to by their
makers.
It is not all that clear that Outagamie County contradicts this
position.
By an act of the legislature, the lawmakers directed the governor
to appoint a special committee, whose composition was defined,
which would establish criteria and evaluate proposals meeting
such criteria relating to a site for a new state university.
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The committee was to recommend sites to the governor and other
officials who, with the assistance of the legislature, would
choose a site.
A citizen complainant brought suit for a declaratory judgment
that would declare void the recommendation and choice.
The petitioner there claimed that the committee's recommendation
violated its publicly announced criteria and that the committee
had established new criteria in a session violating the then
existing open meeting law, section 14.90, Stats. 1967.
This court refused to enter a declaratory judgment on the general
basis that since no conceivable remedy could be afforded the
petitioner to vindicate such a declaration, the judgment
would not terminate the controversy.
The perception that no remedy could be afforded because of
violations of a statute's requirement that criteria be followed
and because of a violation of a separate open meeting requirement
may be attributed to the fact that neither statute had any
provision for rendering the result of acts in violation void.
Voidability and forfeiture were later added to
the open meeting law.
Outagamie County did not announce that the statutory law does not
bind the legislature in its law-making procedures.
Sec. 66.77, Stats., itself authorizes actions to be brought
against members of any governmental body who knowingly violate
that section and represents the expressed will
of the legislature in this respect.
This court is being asked to construe a statute, not to interfere
with the functions or the separate power of the
legislative branch of government.
In construing the statutes as a whole, it is necessary to hold
that the legislature intended section 66.77 to apply to
legislators and legislative committees, subject
to expressed statutory exceptions.
The creation of section 66.77(4)(g) and (h) would be superfluous
if the legislators were not bound by the open meeting law.
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Rules of construction dictate against such interpretation.
This rationale is not contradictory of the recent decision
of this court in State ex rel. Lynch v. Dancey,
ante, p. 287, 238 N.W.2d 81.
In that case, the open meeting law was found inapplicable because
of its conflict with the superintending power of this court as
expressed in art. VII, section 3 of the Wisconsin Constitution.
Although duly enacted legislation is ordinarily effective as a
constraint or guide on all branches of government, it cannot
overpower the express or implied applications of that more
fundamental law, the state constitution.
In summation, section 66.77, Stats., was clearly applicable
to the joint finance committee.
The committee is required to conduct its meetings under the open
session requirements, including public notice and advance
announcement of closed sessions, when it is formally
constituted and thereby possesses the vitality to
act effectually on governmental business.
As members of a governmental body, the committee members are
potentially subject to the law when they meet and engage
in the broad range of activity that can be termed
the conduct of governmental affairs.
When the circumstances of an informal gathering are such that a
quorum of a governmental body is present and business within the
ambit of this body is discussed, as in the March 11, 1975
conference of the committee Democrats, then the law applies.
When the same activity takes place in a conference of exactly
half the members of a governmental body, as in the April 24, 1975
gathering of the committee assembly Democrats,
the law also applies.
Failure to meet open session requirements results in the
presumption that conferences such as these were intended or
designed to avoid the law that is applicable to the formal
meetings of the governmental body.
Forfeitures could result.
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Participants at these conferences may in fact demonstrate
that no evasion of section 66.77, Stats., was intended.
Emergency circumstances may be a valid justification.
The law itself provides for private "partisan caucuses"
of members of the state legislature.
Since that body is frankly political, this exception apparently
was allowed to accommodate the partisan function even when
circumstances otherwise dictate that the law is being evaded;
the distinction between the conduct of governmental affairs
and partisan views of the same is impossible of definition
in participatory, political government.
The stipulation by the parties admits that the two meetings
involved here were attended solely by committee members
of one political party.
It also impliedly acknowledges the interrelation
of politics and government.
Since no restriction was placed on the realm of matters that the
private partisan caucuses could address, the two conferences
cannot be found to be in evasion of the law.
We conclude that a declaratory judgment may be entered, but
caution against such use of the device by prosecutors.
We construe the open meeting law and its exception to apply,
through use of legislative intent and strict construction.
The case is accepted, as not contrary to separation of powers,
in that it concerns application of the forfeiture penalty to
members of a body, not to the branch of government itself.
By the Court. Ä It is declared and adjudged that section 66.77,
Stats., is applicable to legislative proceedings subject to
certain expressed statutory exceptions.
It is further adjudged that the respondents and necessary parties
respectively were not in violation of said statute
on March 11, 1975 and April 24, 1975.
DAY, J., took no part.
WILKIE, C. J. (concurring).
The open meetings law expressly declares that it is the public
policy of Wisconsin that "the public is entitled to the fullest
and most complete information regarding the, affairs of
government as is compatible with the conduct of governmental
affairs and the transaction of governmental business."[fn1]
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The prevention of secrecy in government is thus
a matter of basic public interest in Wisconsin.
Under these circumstances I think that the open meetings law
should be liberally construed so as to effectuate
this broad public policy.
This is the position taken by the Florida courts, which have held
that that state's "Sunshine Law" was enacted for the benefit of
the public and should be construed most favorably to the public
despite its penal nature.[fn2]
This is also the position taken by Sutherland, who recommends
that the rule of strict construction should be relaxed
when the public and social interests in penal
legislation are very great, as they are here.
A more liberal construction is especially appropriate where,
as here, the maximum possible penalty does not threaten
the personal liberty of offenders, but at most
exposes them to a forfeiture of $200.[fn3]
Nevertheless, even construing this statute liberally, I agree
with the majority that, on the basis of the facts stipulated by
both the respondents and the district attorney, the conclusion
must be that the open meetings law in its present form did not
require these two meetings to be open.
This court cannot create open government by fiat, however
desirable a public policy open government may be.
This court is limited to interpreting and declaring the intent
of the legislature when it enacted the open meetings law.
It is clear from the stipulated facts that the legislature, in
enacting the present open meetings law, with its various
exceptions and qualifications, intended to permit
conferences like the two in question here.
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I have been authorized to state that Mr. Justice BEILFUSS
joins in this concurrence.
[fn1] Sec.
66.77(1), Stats.
[fn2] Board of Public Instruction of Broward County v. Doran
(Fla. 1969), 224 So.2d 693.
[fn3] Sutherland, Statutes and Statutory Construction
(4th ed. 1972), sec. 59.05.
ROBERT W. HANSEN, J. (dissenting).
This original action for declaratory relief challenges the
legality of two closed-to-the-public meetings held by members of
the joint committee on finance of the state legislature.
At the first such meeting, a full quorum of the committee was
present.
At the second, one-half of the committee members were present,
a "negative quorum" sufficient to block committee action.
At both meetings, all committee members who were invited
and attended were members of one political party.
Both closed meetings were called to discuss matters that were
to come before the full committee in its public sessions.
Where those participating in a closed-to-the-public session of a
committee of the legislature are not members of a single
political party, the court majority holds such secret sessions to
violate the open meeting statute.[fn1]
The secret meetings convened to discuss or decide matters to come
before the committee or body in a public session are, the
majority holds, "conferences,"[fn2] which, if "designed to avoid"
the open meeting law, are illegal under section 66.77.
[fn3] The majority holds such closed session or conference to be
a violation of the open meeting law if
(1) the full membership is present;
(2) a quorum is present; or
(3) one-half the membership, a "negative quorum,"
is present.
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In each of the situations listed, the majority holds that
the issue becomes whether or not the secret meeting
was "designed to avoid" the requirements of
the open meeting law.
The writer agrees with these conclusions of the court majority,
but would add that a secret session or conference of less
than one-half of the members of a legislative committee
or governmental body ought also be held to be illegal
where there is present an intent to avoid the statute,
plus the ability to control or determine a decision to
be made at the public session of the committee or body. [fn4]
The conference of less than half of the members or of a
minority group in the body may not qualify as a "meeting"
of the body,[fn5] but it can constitute a deliberate
conspiring to violate the open meeting requirement,
and that of itself is a violation of law.[fn6]
Given an "intent to avoid" and ability to influence or control
decision-making, the writer would include in the
proscription meetings of less-than-half of
the membership of a governmental body.
However, the majority holds that, as to committees of the
legislature, where those invited to and participating in
a closed committee meeting belong to one political party,
their secret session becomes a "partisan caucus,"
exempted from the antisecrecy requirements by
the open meeting law.[fn7]
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The state legislature has set forth exceptions, eight of them, to
its general mandate that: "No discussion of any matter shall be
held and no action of any kind, formal or informal, shall be
introduced, deliberated upon, or adopted by a governmental body
in a closed session. . . ."[fn8]
The exception relied upon to validate the two secret sessions,
here challenged, is subsection (g) exempting "Partisan caucuses
of members of the state legislature."
The majority opinion finds the two secret or closed meetings,
here challenged, to have been such "partisan caucuses,"
and as such exempted from the requirements of the
state open meeting law. The writer disagrees.
The majority holds that party members on a committee of the
legislature may meet in advance and in secret to decide
what is to be done at a subsequent public meeting
of such legislative committee.
At the same time, it holds that such a quorum of such committee,
if involving members of both political parties, may not meet to
discuss or decide in secret what the committee is to do, at least
not "with intent to avoid the [open meeting] section."
Thus the caveat is limited to insisting that no one from another
party or an independent be invited to the closed meeting.
In reaching this somewhat startling result, the majority limits
itself to construing the open meeting law itself.
The writer would go further to include the constitutional mandate
in this state against secrecy in the carrying out of its
legislative function by the state legislature, to wit:
"Section 10.
Each house shall keep a journal of its proceedings and publish
the same, except such parts as require secrecy.
The doors of each house shall be kept open except when
the public welfare shall require secrecy.
Neither house shall, without the consent of the other, adjourn
for more than three. days."[fn9] (Emphasis supplied.)
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Keeping the doors open does not mean leaving them ajar only when
roll calls are taken and votes are recorded.
Keeping the doors open requires their not being locked at any
stage of the lawmaking process "except when the public welfare
shall require secrecy." Keeping the doors open refers to
committee sessions, as well as sessions of the full senate
or assembly, and includes the debating and deciding on
legislation as well as the voting and recording of votes.
The majority opinion notes that some states do not include
the legislature in their open meeting law.
The state constitution in our state makes such self-exclusion
from an antisecrecy law meaningless.
The majority states that our legislature has made the exceptions
and ". . . drafted them to its own purposes."
The state constitution does provide that: "Each house may
determine the rules of its own proceedings,"[fn10] but that
right is subject to and limited in our state by the
constitutional mandate that doors of the legislature
be kept open during the lawmaking process.
It is not correct to assume or imply that, if our state
legislature had exempted itself from the provisions of its open
meeting law, it could conduct its lawmaking function in secret.
A constitutional mandate does not need legislative
reenactment to remain operable.
As to proceedings of the legislature, in this state, public
proceedings are constitutionally required ". . . except
when the public welfare shall require secrecy."[fn11]
Exemptions from such constitutional insistence upon openness
cannot be legislatively created or judicially upheld except
when and where required by the public welfare.
This applies to legislative deliberations as well as
actions of the legislature, for both are integral
parts of the legislative process. [fn12]
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As the writer views the matter, the answer as to a possible
constitutional infirmity as to the entire exemption of "partisan
caucuses" from the requirement of openness depends upon the
definition given to the word "caucus."
An accepted and widely used dictionary defines the word thusly:
"[A] closed meeting of a group of persons belonging to the same
political party or faction [usually] to select candidates or to
decide on policy."[fn13]
Even this broad definition would not seem to fit the situation
of the two challenged meetings here before us.
Here the parties have stipulated that the cochairman of the joint
committee on finance "assigned subject areas of the budget" to
individual members and "made them responsible for studying such
areas," with the secret sessions held for such individual members
to report "their findings and recommendations."
Unless form is to replace substance, whatever the purpose stated
or the label given such delegation, it appears clear that the
action of the particular committee is the target, not any
matter of party organization or general party policy.
Seven or eleven members of one party on a committee
could not be determining the party policy for their
party colleagues in the senate or assembly.
They would be discussing and deciding only what
a particular committee would do.
Committee action, not general party policy or
organization, is involved.
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The question of construction becomes one of the legislative
intent in creating this exemption for "partisan caucuses of
members of the legislature."
The intent of the legislature is a controlling factor in the
interpretation of a statute.[fn14]
The writer would find the legislative intent and construe
the statutory exemption to refer solely to the traditional
and institutionalized party caucuses composed of all members
of a political party in the assembly, in the state senate
or, on occasion, in the two houses.
The rules of senate and assembly refer to no other
type of caucus.
Even under the dictionary definition, it is only such caucuses of
all party members in one branch of the legislature that can
"select candidates or . . . decide on policy," meaning the
policy of the party members in senate or assembly as to
a matter pending before the legislature.
The basis for preferring and adopting such strict construction
of the word "caucus" is that it alone furthers the general
purpose of the open meeting statute and best stays
within the constitutional limit.
If three members of a five person legislative committee can,
assuming they belong to the same party, meet in secret to
determine what the committee is to do when it meets in
public, the exemption as to a "partisan caucus" is
broadened to where public business can be
transacted in secrecy.
This is contrary to the constitutional mandate
and purpose of the statute.
In determining legislative intent, consideration is to be given
to the object sought to be established by the enactment.[fn15]
The majority applies the rule of strict construction
to the statute requiring open meetings.
The writer would apply the rule of strict construction
to the exemption.
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Strict construction ought here be applied
against secrecy, not for it.
Such strict construction of the word "caucus" is here suggested
by the declaration of policy in the open meeting law that is an
aid and guide to construction of the rest of the statute.[fn16]
It is indicated by the declaration of policy that our
representative form of government is "dependent upon an informed
electorate."[fn17]
It is further indicated by the legislative declaration of the
public policy as entitling the public "to the fullest and most
complete information regarding the affairs of government as is
compatible with the conduct of governmental affairs."[fn18]
It is indicated by the constitutional mandate that doors of
the legislature be kept open "except where the public welfare
requires secrecy."[fn19] The writer would construe the
reference to "partisan caucuses" in the open meeting
law to apply only to caucuses of all party members
in either the assembly or state senate or both.
The writer would conclude that both the meetings of members of
the legislature's joint committee on finances here challenged
were not within the exemption of section 66.77(4)(g), Stats.,
relating to "partisan caucuses," and were illegal under the
requirement of open meetings of section 66.77(3), but only
if it were established that the two conferences
were "designed to avoid this section."
Whether the two meetings here challenged were thus
"designed to avoid" the requirements of the open meeting law
cannot easily be discerned or determined on this record.
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The record before us consists of affidavits which do not clearly
establish a "design to avoid" the provisions of section 66.77.
That issue as to design or intent here is largely a matter of
drawing inferences from facts alleged or stipulated to.
The record here appears to permit the drawing of
different or conflicting inferences.
This court, on this record at least without the taking of
additional testimony as to material facts, ought not,
and, as the writer sees it, cannot here determine
the issue of design or intent.
Therefore, I would dismiss this complaint without
prejudice, leaving the parties to their options
and remedies at the trial court level.
[fn1] Section 66.77, Stats.
[fn2] The majority states:
If members of a governmental body intentionally
gather to discuss business without undertaking
a formal meeting, they can be described as in
a conference.
[fn3] The majority continues:
The statute does not let such possible gatherings
exist as an evasion of the law. . . . If such
intention [to avoid] is discerned, it may
thereupon be designated a 'meeting' under
the statute for analysis of its exact
noncompliance with open session
requirements.
See: Section 66.77(1), Stats.
[fn4] The majority concedes:
It is certainly possible that the appearance of a
quorum could be avoided by separate meetings of
two or more groups, each less than quorum size,
who agree through mutual representatives to act
and vote uniformly, or by a decision by a group
of less than quorum size which has the tacit
agreement and acquiescence of other members
sufficient to reach a quorum.
[fn5] See: Section 66.77(2)(b), Stats., providing:
"Meeting" means the convening of a governmental
body in a session such that the body is vested
with authority, power, duties or responsibilities
not vested in the individual members."
[fn6] See: section 939.31, Stats.
[fn7] Section 66.77(4)(g), Stats.
[fn8] Section 66.77(3), Stats.
[fn9] Art. IV, section 10, Wisconsin Constitution.
[fn10] Art. IV, section 8, Wisconsin Constitution.
[fn11] Art. IV, section 10, Wisconsin Constitution.
[fn12] See: 56 Am. Jur. 2d, Municipal Corporations, p. 215,
section 161, stating:
". . . [U]nder a statute providing that actions of
local legislative bodies be taken openly and that
their deliberations be conducted openly, it has
been held that meetings of a county board of
supervisors must be held openly, both for
deliberation as well as action, since deliberation
and action are recognized as dual components of
the collective decision-making process and the
meeting cannot be split off and confined to one
component only so far as the right of the public
to attend is concerned."
[fn13] Webster's, Seventh New Collegiate Dictionary, based on
Webster's, Third New International Dictionary (1967),
published by G. & C. Merriam Company.
[fn14] See: Safe Way Motor Coach Co. v. Two Rivers (1949),
256 Wis. 35, 39 N.W.2d 847.
[fn15] Loof v. Rural Mut. Casualty Ins. Co. (1961),
14 Wis.2d 512, 111 N.W.2d 583.
[fn16] Section 66.77(1), Stats., providing:
(1) In recognition of the fact that a
representative government of the
American type is dependent upon an
informed electorate, it is declared
to be the policy of this state that
the public is entitled to the fullest
and most complete information regarding
the affairs of government as is compatible
with the conduct of governmental affairs and
the transaction of governmental business. . "
[fn17] Id.
[fn18] Id.
[fn19] Art. IV, Section 10, Wisconsin Constitution.
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